When San Francisco–based therapist Nabila Mango came home from a trip to Jordan in December of last year, she discovered something few Americans realize: Your Fourth Amendment protections against unreasonable search and seizure don’t start until after you’ve passed through customs. U.S. Customs and Border Protection (CBP) agents rummaged through her purse, took her business cards and receipts, questioned her at length about her friends and family at home and abroad, and poked around on her cell phone.
“All the calls from my daughter, who was waiting outside [the airport] to pick me up, were deleted,” said Mango, who has been a U.S. citizen for 28 years. “I was very traumatized,” she said, describing the CBP agents as aggressive. Mango logged a complaint with the Asian Law Caucus (ALC), a civil-rights watchdog group that has received more than 20 similar reports of intense border scrutiny, many involving searches of electronic devices. In at least one case reported to the Association of Corporate Travel Executives (ACTE), an individual’s laptop was taken and never returned.
Murky Borders
The CBP is the branch of the Department of Homeland Security charged with controlling the borders. “It is not the intent of the CBP to subject travelers to unwarranted scrutiny,” said CBP spokeswoman Lynn Hollinger in a statement responding to our queries. “However, unless exempt, all travelers entering the United States, including U.S. citizens, are required to participate in CBP processing.”
The question of what “processing” might entail remains vague, with questions to the CBP on the topic remaining unanswered because the “matter is under litigation,” but digital search is definitely part of the game. “Laptop computers may be subject to detention for violation of criminal law such as if the laptop contains information with possible ties to terrorism, narcotics smuggling, child pornography, or other criminal activity,” according to Hollinger’s statement. How agents decide which laptops to search, however, remains unclear.
The Electronic Frontier Foundation (EFF), a digital civil rights advocacy group, along with the ALC, is trying to shed some light on the shadows of CBP procedure. The organizations filed a Freedom of Information Act (FOIA) request with the CBP last year. “We’ve asked the CBP for its policies and procedures for performing searches at the border on electronic devices . . . and singling people out for questioning,” said EFF staff attorney Marcia Hofmann.
“In terms of laptops, are there any internal restrictions on what they can do? If they copy a hard drive, what do they do with that information? Who else can access it? We just want documents that would answer these questions and let the public know what the government does in these types of searches.”
As of this writing, the CBP has not produced the requested documents, and the EFF has filed a suit with the hope that a judge can prod the agency into compliance (almost certainly the litigation Hollinger cites). Apart from CBP policies, the law around border search clearly suspends some Fourth Amendment protections, but the question of when a laptop can be searched remains contested.
A pending case may soon provide some clarification; in the meantime, business users transporting information that they’re contractually obligated not to disclose, and individuals uncomfortable with authorities seeing the slice of private life often contained in personal devices, should take note when crossing the border. ACTE, the business traveler’s organization, recommends that its members carry the absolute minimum of sensitive materials on their devices while traveling.
